dissenting:
The defendant, Jerry Washington, contends that the trial court did not have jurisdiction to enter the order on June 19, 1984, which allowed Tom Young, the plaintiff, to file his second amended petition in this election contest. Washington specifically asserts that this appeal is based on a question of jurisdiction and does not involve the court’s discretion. A brief chronology of the pertinent events is as follows:
April 2, 1984: Young filed the instant election contest.
April 26, 1984: This was statutorily the last day within which to file an election contest. Young filed his first amended petition. (Washington in the trial court contested Young’s right to file this petition. However, on appeal Washington concedes that the trial court had jurisdiction to consider Young’s request for leave to file the amended petition.)
June 5,1984: Washington filed a motion to “strike and dismiss” the first amended petition filed on April 26, alleging that Young’s first amended petition lacked specificity.
June 19,1984: The trial court entered two orders, in the first of which it allowed Washington’s motion to “dismiss” Young’s first amended petition. In the second order entered contemporaneously Young was given leave to file a second amended petition. (It is this second order that Washington seeks to reverse on appeal.)
Washington reasons that on June 19 the court “dismissed” the petition as “insufficient in law” under section 7 — 63 of the Election Code. (Ill. Rev. Stat. 1983, ch. 46, par. 7—63.) Consequently, he argues, the court lost jurisdiction. Section 7 — 63 reads, in pertinent part, as follows:
“If, in the opinion of the court, in which the petition is filed, the grounds for contest alleged are insufficient in law the petition shall be dismissed. If the grounds alleged are sufficient in law, the court shall proceed in a summary manner ***.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 46, par. 7—63.
I disagree with the argument in two respects. First, the evidence does not support Washington’s contention that the court found the petition “insufficient in law.” Washington made a motion to strike and dismiss the petition because it failed to allege facts with the required specificity. Washington does not here assert how the petition is insufficient. A petition that is merely not specific enough, particularly in a situation like this where Young was gathering facts all along, is not in my judgment a petition that is insufficient in law under the statute. The trial court was allowing Young to amend his petition so the court could most intelligently consider the proper issues. If indeed the second amended petition was insufficient the court could dismiss it. Washington does not here contend that delay is an issue, only jurisdiction.
Secondly, the order entered on June 19 is not a dismissal order even though the exact wording of the order states that it dismisses the petition. We must look to the second order that was entered at the same time which allows Young to file a second amended petition. If a petition is finally dismissed the order allowing leave to file an amended petition is absurd. In considering the orders as a whole they must be considered in terms of the ordinary practice in filing such motions. Generally they are phrased, as it was in this case, in terms of a motion to strike and dismiss. In this case the order dismissing the petition more appropriately is an order to strike the petition with leave to Young to file his second amended petition.
Washington cites Smith v. Township High School District No. 158 (1929), 335 Ill. 346, 167 N.E. 76, and MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 164 N.E. 209, in support of his argument that the trial court did not have jurisdiction when it allowed Young to file his second amended petition. Washington asserts that in Smith and MacGuidwin it was held that where a properly filed petition to contest an election sets forth one or more sufficient grounds for contest, amendments to the petition may be allowed even after the expiration of the time within which the original petition was required to be filed. Smith v. Township School District No. 158 (1929), 335 Ill. 346, 351, 167 N.E. 76; MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 76-77, 164 N.E. 208.) Washington argues that under the standard of Smith and MacGuidwin, as Young did not allege any grounds of contest, the trial court improperly allowed Young to amend his petition. The premise of this argument is that Young’s petition is insufficient in law. As I stated above, I believe there is no question of the petition being insufficient in law under the statute; it merely lacked specificity.
The purpose of a proceeding to contest an election is to ascertain the true vote of the electorate. Smith and MacGuidwin recognize that as the very nature of this kind of a proceeding makes it difficult for a petitioner to state how a fraud had been perpetrated without further investigation, the petition should receive a reasonable construction such that a fraud will not be allowed to go protected, but yet conforming to a degree of strictness so as to prevent the setting aside of the acts of sworn officials on mere suspicion, without an adequate and well defined cause. (Smith v. Township School District No. 158 (1929), 335 Ill. 346, 351, 167 N.E. 76; MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 76-77, 164 N.E. 208; see also Zahray v. Emricson (1962), 25 Ill. 2d 121, 124, 182 N.E.2d 756.) The only alleged defect in the first amended petition is lack of specificity. Striking that petition and allowing Young to file the second amended petition was well within the court’s power. I would affirm the order of the trial court.